Re C ('Parental Alienation'; Instruction Of Expert) [2023]: Red Light Spells Danger ' But Not A Definitive Embargo On Instructing Unregistered And Unchartered Psychologists

• Published date: 21 March 2023
• Subject Matter: Litigation, Mediation & Arbitration, Family and Matrimonial, Family Law, Court Procedure
• Law Firm: Deka Chambers
• Author: Ms Laura Bumpus

In determining the applicant mother's appeal against an order made by HH Judge Davies refusing her permission to reopen findings of fact, the President gave guidance relating to the instruction of experts in family proceedings where there is an allegation of parental alienation.

Brief Background

1. The proceedings related to two children (aged 13 and 11 years old at the date of the appeal) where post separation of the parents, contact between the children and the father broke down in 2018 leading to cross applications to suspend contact and to enforce to earlier order. Proceedings were reactivated in December 2019, a guardian was appointed and directions allowed for the instruction of a 'Child and Adolescent Psychiatrist or psychologist' to consider the reasons and causes of the older child's unwillingness to see or speak to her father and the younger child's past unwillingness to do so, and to assess their emotional needs to inform the court as to the appropriate child arrangements. The identity of the expert, Ms A, was only confirmed and agreed after the hearing. Perhaps unsurprisingly, the President found that the process adopted by the court lacked the necessary rigour: the order did not specify the required professional discipline of the expert as between psychology and psychiatry, Ms A's CV was never submitted to the court and the court order, presumably agreed between the parties, erroneously described Ms A and 'Dr A'.
2. Ms A undertook the instruction and concluded the children had been alienated against their father by the mother. Her report was plainly influential on HHJ Davies who ordered the children's removal from their mother's care with no contact to the mother, pending a fuller hearing which ultimately concluded with limited contact to the mother pending final hearing.
3. At the final hearing the Judge gave a carefully reasoned Judgment i) relying on her own analysis of the extensive oral evidence of the parents; ii) weighing up and accepting the evidence of Ms A that both children had been influenced and encouraged by their mother to think negatively of their father and that this had caused significant emotional damage to them; and iii) accepting the guardian's own analysis (based on the CAFCASS Alienation Tool) and conclusion that without significant change the children's negative view of the father would become entrenched causing long-term emotional harm. The mother applied for permission to appeal the fact-finding part of the Judgment, inter alia, asserting:

'The judge was wrong in relying upon the report of [Ms A] whom holds herself out as a 'psychologist' and gives diagnoses despite not being qualified to do so; the judge was wrong to give any weight to her report given that she does not meet the criteria in Part 25 FPR. In this regard the judge completely failed to deal with the criticisms made on the mother's behalf of [Ms A] and was wrong in the circumstances to accept the expertise and the recommendations of [Ms A].'

4. Peel J refused the application on 1 September 2020 on the basis it was 'totally without merit' and in respect of the challenge to Ms A's instruction, found she was jointly instructed, no appeal against her appointment was made, she produced reports and gave oral evidence, which was challenged. Her expertise was firmly placed in the arena by the mother and it was open to the judge to accept her evidence and to find she was an impressive witness. Further, Ms A's evidence was only part of the totality of evidence which the Judge considered.
5. The mother issued a further application to reopen the issues that had been determined in June 2021 and sought the instruction of an expert, Professor Wang, a clinical psychologist and Chair of the Association of Clinical Psychologists (ACP)-UK to advise upon the professional and / or clinical qualifications of Ms A to undertake the assessments of the adults and / or children in the manner sought by Ms A's instructions. Prof Wang also sent an uninvited letter to the court setting out his opinion as to the inappropriate instruction of Ms A. The Part 25 application failed and in his dismissal of the application, the Judge summarised the applicable legal context for an application to reopen, relying principally in Re E [2019] EWCA Civ 1447, setting out paragraph 50 of the Judgement of Peter Jackson LJ:

'A court faced with an application to reopen a previous finding of fact should approach matters in this way:
(1) It should remind itself at the outset that the context for its decision is a balancing of important considerations of public policy favouring finality of litigation on the one hand and soundly-based welfare decisions on the other.
(2) It should weigh up all relevant matters. These will include: the need to put scarce resources to good use; the effect of delay on the child; the importance of establishing the truth; the nature and significance of the findings themselves; and the quality and relevance of the further evidence.
(3) 'Above all, the court is bound to want to consider whether there is any reason to think that a rehearing of the issue will result in any...